Citizens United said the government can’t regulate a corporation's right to spend in politics if the state gives it that underlying power.
Per the 10th Amendment, states can and always have been able to define and redefine powers granted to corporations. With Montana's ballot initiative, voters are directing the state legislature to rescind from corporations (both incorporated and operating in the state) the power to engage in political spending.
Quoting from the
"The legal strategy behind the Montana Plan draws strength from the limits of Citizens United itself. Every campaign-finance case the Court has ever decided involved a fully empowered corporation—a company that had already been granted the power to act and was now asserting a right. The Court held that the government could not infringe that right.
But what if the corporation had never been granted the power in the first place? When states issue powers to corporations, they are defining what kind of creature they are creating, not limiting speech. And courts have long held that state legislatures have plenary authority to define the powers of corporations within their borders."
Corporations will of course challenge and attempt to take this to the US Supreme Court. However, a key strength of this approach is that it's based the 10th Amendment which established the principle of federalism. "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people".
For an overview on states powers Montana Plan.
For a more in depth discussion on this, please refer to the section entitled "Why this approach to undoing Citizens United works" in "The Corporate Power Reset That Makes Citizens United Irrelevant"
No. This proposal has no affect on businesses right to lobby or petition the government, give testimony before legislative or regulatory bodies.
The proposal is narrowly written to exclude political spending. It only restricts "powers related to Election Activity or Ballot-Issue Activity" and does not alter any other power.
Quoting from Montana's ballot initiative language, section (2)(b):
(b) The people never did, and do not, intend the powers of Artificial Persons to include Election Activity or Ballot-Issue Activity. This section retracts all Artificial Persons’ powers and re-grants only those powers that the people deem necessary or convenient to carry out an Artificial Person’s lawful business or charitable purposes, as described in (3)(e). Powers related to Election Activity or Ballot-Issue Activity shall not be deemed necessary or convenient to those purposes under any circumstance.
Reincorporating in another state won't help.
The law would prevent any corporation from spending on politics in that state regardless of where they incorporated.
Quoting from Rolling Stones "The Right’s Secret Plan to Help Billionaires Buy Elections":
"What’s more, state laws’ existing anti-circumvention provisions — which were recently upheld by the Supreme Court — would deny those powers to out-of-state businesses, too."
The proposed law is about political spending in the state, regardless of the office or issue. If passed in a given state, all the elections (local, state, and federal) would be free of corporate and dark money.
For example, a Delaware corporation would no longer have the power to buy political ads in that state.
Of course, that Delaware corporation could still engage in political spending in states without this proposed law.
More on this from the Montana Plan.
Pretty much, but just in the states that pass this.
Candidates would still buy ads with their own legal PACs. Spending and claims made in those ads are regulated and made public by the FEC. Anonymous big-dollar groups running toxic, divisive, and misleading ads would be illegal-- but only in state that pass this.
In breaking this law, the corporation risks loosing their license to operate in the state as a corporation. The company could choose to forgo their incorporated status in the state. But that means they also loose the legal protections of being incorporated. Insurance companies are unlikely to provide coverage to such companies.
This proposed law would apply to all state-created entities, including unions and non-profits.
When we hear the word 'corporations', we generally think only of business corporations.
In legal language, though, the word applies to numerous other organizations.
That's why the proposed initiative is careful to use and apply the term 'artificial person'.
This definition casts a wide net to ensure that all types of state-created entities are included—not just traditional corporations, but also nonprofits, LLCs, unions, and so forth. It ensures consistency and comprehensive coverage.
All Artificial Persons are treated equally.
We don't need to wait on Delaware change its laws to outlaw dark money spending.
Because states have anti-circumvention provisions, the prohibition on dark money spending would apply to all corporations operating in that state: in-state, out-of-state, and also foreign corporations.
Quoting from Rolling Stones "The Right’s Secret Plan to Help Billionaires Buy Elections":
"What’s more, state laws’ existing anti-circumvention provisions — which were recently upheld by the Supreme Court — would deny those powers to out-of-state businesses, too."
These are the states that have the ballot initiative process:
Alaska, Arizona, Arkansas, California, Colorado, Delaware, D.C., Florida, Idaho, Illinois, Kansas, Maine, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota, Utah Washington, Wyoming.
For states without the ballot initiative process, voters will have to pressure their state legislature to enact this anti-dark money law.